Hildebrant v. City & County of San Francisco

Plaintiff sued for damages suffered by him while attempting to board a street-car operated by the defendant. The accident occurred about 9:30 P. M. on the 13th of November, 1919. Plaintiff had been a passenger on *Page 591 a Market Street car operated by the defendant coming east through the Twin Peaks tunnel. He obtained a transfer and alighted from said car at Market and Church Streets. He then went to the southwest corner of Market and Church Streets and there waited on the sidewalk for the Church Street or "J" car, which came west on Market Street and turned at that point to go south on Church Street. At that point four street railway tracks were maintained on Market Street, the municipal or "J" line occupying the outer or northerly track. As this car approached the intersection it made a wide curve across Market Street passing over these four tracks, and, as was customarily the case, slowed down to a speed of about three and a half miles an hour. As the "J" car on this occasion crossed Market Street into Church the plaintiff walked out to a white line upon the pavement which he at sometimes described as a safety station but later explained to be merely a line parallel with the curve or what is known as a danger line to guard passengers and vehicles from the swing of the car on the curve. He did not signal the car to stop. He testified that the motorman saw him — a mere conclusion on his part which was expressly denied by the motorman on the stand. The speed of the car was not reduced from that maintained while it was rounding the curve crossing the tracks on Market Street, and there is not a word of evidence to support plaintiff's contention that the car slowed down as an invitation to him to board it. As soon as the car reached the straight line of Church Street it was increased to the usual speed and after it had passed the white line, or safety mark, the plaintiff attempted to board it, making "a few strides to get on it." While thus attempting to board the car he was holding a bundle of boards under his left arm. He got his feet upon the lower step of the car and was holding on to the stanchion with his right hand and attempting to reach the platform when the increased speed of the car jolted him off and he fell to the pavement, sustaining the injuries which are the basis of the action. The cause was tried before the court without a jury and judgment in the sum of two thousand dollars was awarded to the plaintiff, from which the defendant prosecutes this appeal under section 953a of the Code of Civil Procedure. *Page 592 [1] It is conceded by respondent that the main question involved is whether or not he was a passenger at the time of the injury. He also concedes that where a person is injured in attempting to board a car three things are necessary to bring about the relation of passenger and carrier: "1. He must have signaled or otherwise attracted the attention of the operator of the car that he desired passage. 2. He must have been seen or could have been seen by the operator of the car. 3. The car must have slowed down sufficiently to show his acceptance." (Davey v. Greenfield, 177 Mass. 106 [58 N.E. 172].) From the respondent's own testimony it appeared that he did not give the motorman or the conductor any signal that he was about to board the car. He did testify that the motorman saw him standing on the street, but this, of course, was merely a conclusion on his part and was expressly denied by the motorman. Even so, there is no evidence that he gave the motorman any indication that he was about to become a passenger or that the motorman knew, or had reason to believe, that he was about to board the car. As to the third essential mentioned in the case cited, all the evidence is without conflict that the car commenced to slow down when it began to take the turn at the northeast intersection of Market Street, and that during the entire swing around this curve it proceeded at a rate of about three and one-half miles an hour crossing four tracks in its progress, and there is no evidence of any nature that the speed of the car was reduced as it approached the place where the respondent stood. On the other hand, the evidence is plain and unmistakable that before the respondent attempted to board the car it had passed the white line or safety mark and its speed had been increased. There is, therefore, no evidence that the operator of the car, by reducing his speed or indicating that he was about to stop, invited the respondent to become a passenger. All the evidence is that the car was operated in a careful and prudent manner and in the customary way so that evidence of negligence on appellant's part is wholly lacking. The case is similar in its facts to Ginnochio v. San Francisco,194 Cal. 159 [228 P. 428], where the evidence was reviewed and the intimation given that it did not prove negligence. The same case was *Page 593 before this court in 42 Cal.App. Dec. 395, where we held that the facts did not warrant a finding of negligence on the theory that the party was invited to become a passenger by the mere slackening of the speed of the car. Fremont v. Metropolitan St.Ry. Co., 83 App. Div. 414 [82 N.Y. Supp. 307], and Monroe v.Metropolitan St. Ry. Co., 79 App. Div. 587 [80 N.Y. Supp. 177], cover the same point. [2] The weight of authority is that the mere slackening of the speed of a car when approaching a crossing or rounding a curve is not in itself an invitation for one to become a passenger and that it is not in itself negligence on the part of the operator of the car to reduce his speed under such circumstances or to increase it after the emergency has passed. The respondent does not charge the appellant with any other act of negligence and there is no evidence to support the judgment. Judgment reversed. Sturtevant, J., and Langdon, P. J., concurred. A petition for a rehearing of this cause was denied by the district court of appeal on December 12, 1924, and the following opinion then rendered thereon: